[Cites 4, Cited by 0]
Delhi High Court
Jagdish vs Kamla (Since Deceased) Through Lrs on 16 April, 2026
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 10th February, 2026
Pronounced on: 16th April, 2026
+ RFA 302/2025, CM APPL. 18795/2025, 18797/2025 & 18798/2025
JAGDISH (Deceased)
Through his LRs:
(i) Arun (Son)
(ii) Ajay (Son)
Both R/o:
B-152/15-16, First Floor,
Amrit Puri, Garhi, New Delhi-110065.
(iii)
Ranu Kumari (Daughter)
W/o Sh. Kamal Kumar
R/o House No. 13, Street No. 9A,
Anand Nagar-B, Patiala, Punjab- 147001.
(iv) Shalu Kohli (Daughter)
W/o Kapil Kohli
R/o B-74, DDA Flats,
Double Storey, East of Kailash Garhi,
Sriniwas Puri, New Delhi-110065
(v) Madhu Dhiman (Daughter)
W/o Sh. Rupendra Kumar Dhiman
R/o F-142, 13th Floor, Gulshan Belina,
Greater Noida, West Greater Noida,
Distt. Gautam Budh Nagar,
U.P.- 201308 .....Appellant
Through: Mr. Asit Kumar Roy, Advocate Ms.
Rani Bhardwaj Advocate for
Appellant No. 3, 4 And 5.
Versus
Smt. KAMLA (Deceased)
Through her LRs:
(i) Sh. Dev Anand (Husband)
(ii) Amit Kumar (Son)
(iii) Sumit Kumar (Son)
RFA 302/2025 Page 1 of 7
Signature Not Verified
Signed By:VIKAS
ARORA
Signing Date:17.04.2026
12:50:09
(iv) Vishali (Daughter)
All R/o B-152/15-16, Ground Floor,
Amrit Puri, Garhi, New Delhi-110065. .....Respondent
Through: Nirvikar verma advocate
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
C.M. Appl. 18795/2025: Application for condonation of delay:
1. The Appellant has moved an Application under Section 5 of the
Limitation Act seeking condonation of this delay of 72 days in filing the
present Appeal
2. For the reasons stated in the Application, the delay is condoned and
the Application for condonation of delay, is hereby allowed.
RFA 302/2025:
3. Regular First Appeal under Section 96 of the Code of Civil
Procedure, 1908 (CPC) has been filed against the Judgment and Preliminary
Decree dated 27.05.2024 whereby the Plaintiff filed a Suit for Partition,
Mesne Profits, Permanent and Mandatory Injunction.
4. The brief facts as per Plaint are that the Defendant is the real
brother of the Plaintiff, and he has been residing in the property bearing No.
B-152/ 15-16. Amrit Puri, Garhi, East of Kailash, New Delhi, ad measuring
100 sq. yds. (hereinafter referred to as 'Suit Property'), since 1980. The
father of the Plaintiff and Defendant, i.e. Late Sh. Digambar, during his
lifetime, had bought the Suit Property by way of a Sale Deed dated
20.03.1961. The Plaintiff out of her own funds, along with her parents, had
jointly constructed the Suit Property consisting of ground floor, first floor,
second floor and third floor along with terrace.
5. The father of the Plaintiff had expired on 17.06.2005, leaving
behind the Plaintiff (daughter), Defendant (son) and his wife Late Smt. Sukh
Devi only as his Class I legal heirs under Hindu succession Act, with 1/3rd
share each. After the death of the Late Sh. Digambar, all the legal heirs
continued to live in the Suit Property, the Plaintiff and her mother on the
ground floor and the Defendant at the first floor, the remainder of the Suit
property was let out on rent by Smt. Sukh Devi and the rent was collected by
the Smt. Sukh Devi herself. Thereafter, on 07.02.2018, Smt. Sukh Devi
expired intestate, thus, her 1/3rd share was divided amongst the Plaintiff and
the Defendant, as being the only legal heirs of the deceased, as 1/6th of the
share each, which calculates as 1/2nd share each of the entire Suit Property.
6. However, after the death of Smt. Sukh Devi, the Defendant along
with his sons tried to oust the Plaintiff out of the Suit Property, and one such
attempt was made by the Defendant when he forcibly took possession of one
of the rooms at ground floor from the Plaintiff along with her belongings
like almirah with valuable articles, a study table, bed, refrigerator, side
tables, books etc., to which effect, written complaint to this effect was made
to police vide Written Complaints dated 29.05.2018 and 24.07.2018.
7. Further, the Defendant along with his sons Ajay and Arun, has
occupied two rooms along with kitchen at first floor and two rooms along
with kitchen at third floor of the suit property, the remaining rooms on first,
second and third floors are on rent and the terrace above third floor is in
joint-possession of the Plaintiff and the Defendant.
8. The Defendant, after the death of his mother, had been collecting the
rent out of the two rooms at first floor, four rooms at second floor and two
rooms at third floor of the suit property at the rate of Rs. 4000/- per room per
month approx., i.e. total rent out of the rented premises is about Rs. 28,000/-
to 30,000/- per month. However, despite demands by the Plaintiff, the
Defendant has denied sharing the rent/ profits derived out of the rented
premises with the Plaintiff.
9. Thus, the Plaintiff is entitled for Rs. 1,05,000/- as her shares out of
rent received by the defendant from February, 2018 to August, 2018 which
has been misappropriated by the Defendant in collusion and connivance
with his sons. The Plaintiff is also entitled to 50% of total monthly rental
amount to be derived from the part/ portion of the suit property on rent from
September, 2018 till partition of suit property.
10. The Defendant in his Written Statement took a defense that the
entire construction of the Suit Property was done by their father, i.e. Sh.
Digamber with the help of the Defendant, as they both were working
together, and denied any contribution from the Plaintiff, from her funds.
11. Further, it was submitted that the Plaintiff used to live with their
mother, but it was the Defendant, his wife, sons and daughters who had
taken care of his mother, the Plaintiff resided with her mother only to show
that property as her rented accommodation, to take benefit of house
allowances from MTNL, with which her husband was working.
12. During the last days of Smt. Sukh Devi, the Plaintiff started living
with her and grabbed the control of all the bank accounts of Smt. Sukh Devi
and got included as the joint holder in the account and withdrew all the
money. Thereafter, out of that withdrawn amount the Plaintiff has bought 08
different properties and verbally promised to the Defendant that she will
give share to the Defendant, in those properties.
13. Thereafter, the Defendant moved an Application under Order VIII
Rule 3 of CPC to bring on record the documents and photographs of the 08
properties bought by the Plaintiff with the withdrawn amount from the joint
account of Plaintiff and her mother, out of which the Defendant was only
able to procure electricity bills and photographs of 06 properties, and sought
more time to put the photographs of the other two properties and the bank
account of their mother.
14. Therefore, the Learned District Judge after appreciating the
evidence held that the Plaintiff and the Defendant both are entitled to the
1/2nd share in the entire Suit Property.
15. Aggrieved by the Impugned Judgment dated 27.05.2024, the
present Appeal has been preferred by the Defendant on the grounds that the
Suit Property was purchased by the father of the Plaintiff and the lifetime
investment of the Defendant was spent in the construction of the Suit
Property alongside his father and none of monetary contribution was given
by the Plaintiff is the construction of the Suit Property; and the learned Trial
Court did not consider the 08 properties bought by the Plaintiff, i.e. Kamla
Devi with the money in the bank account of their mother.
Submissions heard and record perused.
16. On merits, it is an admitted position that the suit property bearing
No. B-152/15-16, Amrit Puri, Garhi, East of Kailash, New Delhi,
admeasuring 100 sq. yds., was purchased under a registered Sale Deed dated
20.03.1961, in the name of Late Sh. Digambar.
17. Thereafter, Late Sh. Digambar died intestate on 17.06.2005 leaving
behind his wife, i.e. Late Smt. Sukh Devi, Plaintiff and Defendant as his
only Class I legal heirs. Therefore, all three legal heirs, simultaneously and
equally, each being entitled to 1/3rd share in the Suit Property.
18. Furthermore, upon the subsequent death of Late Smt. Sukh Devi on
07.02.2018, who died intestate, her 1/3rd undivided share in the suit
property devolved upon her children, i.e. the Plaintiff and the Defendant, as
her Class I heirs under Section 15(1)(a) of the Hindu Succession Act, each
taking equal half of her share, i.e. 1/6th of the entire Suit Property, in
addition to the 1/3rd share already inherited from their father, and
accordingly, each party now holds a 1/2nd undivided share in the entire
suit property.
19. Pertinently, although the title stood in the name of Late Sh.
Digambar, the entire or substantial construction on the suit property was
allegedly raised by the Defendant from his 'lifetime investments' and
earnings, and that the Plaintiff did not contribute any funds. Even if such
contribution is assumed for the sake of the argument, mere financial
assistance in construction of a building standing on land owned by another,
it does not ipso facto confer proprietary title or an enlarged share in the
immovable property; moreover, the Defendant has never denied the
ownership of Sh. Digambar.
20. The character of self-acquired property of a Hindu male, does not
change merely because another family member resides therein or contributes
to its construction or improvement, unless there is clear evidence of
blending of the property with the joint family or an overt act demonstrating
intention to throw it into the common hotchpotch.
21. In the present case, the bare assertion of the Defendant that he
assisted his father in construction of the Suit Property which in law, cannot,
defeat the statutory devolution of succession. At best, such alleged
contribution, if proved with cogent evidence and properly pleaded by way of
a counter-claim, might have permitted the Defendant to claim some
equitable adjustment at the stage of final accounts, however, no such
substantive relief was claimed.
22. The suit before the learned Trial Court was a Partition Suit confined
to the suit property and no counter-claim was filed by the Defendant seeking
partition or declaration in respect of the alleged 08 properties said to be
purchased from the account of their mother. The electricity bills and
photographs, even if taken on record, do not by themselves establish that the
consideration for those properties came from the bank accounts of Late Smt.
Sukh Devi.
23. Thus, Appellant has not been able to point out any infirmity in
the Impugned Judgment dated 27.05.2024 where in the Learned District
Judge has rightly appreciated the evidence and held that both the Plaintiff
and the Defendant are entitled to 1/2nd share each in the Suit Property.
24. Hence, here is no merit in the Appeal, which is hereby dismissed.
Pending Applications, if any, stands disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
APRIL 16, 2026
N
